Wednesday, February 8, 2023
The Process Was The Punishment
The Louisiana Supreme Court imposed a fully-stayed year and a day suspension and two years probation for fee misconduct in multiple matters where the investigation commenced and the situation was remedied in 2013
After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings consistent with the underlying facts set forth above. The committee specifically determined that the central issue in this matter is whether the fee agreement was an hourly-fee or a flat-fee arrangement. Based upon the fee agreement’s language, which the committee determined was unambiguous, the committee found the fee agreement was an hourly-fee arrangement. The committee then found, in a nutshell, that respondent (1) constructed and repeatedly used an hourly fee agreement; (2) caused at least 52 clients to execute such fee agreements; (3) misrepresented to his clients the nature of the fee agreement and, thus, deceived each of his clients as to the nature of their agreement and the use of their fees; (4) collected substantial advanced fees; (5) failed to deposit the advanced fees into his trust account; (6) repeatedly treated the numerous fee agreements as fixed-fee arrangements; (7) converted said advanced fees by paying contract attorneys immediately upon receipt of client funds, prior to the earning of such fees; (8) deposited remaining advanced fees into his law firm operating account; (9) failed to keep complete records of client funds remitted to him; and (10) failed to return a total of $3,524.50 in unearned fees to his clients William Tholborn, Pearline Foley, Ryan Fletcher, and Keandra Augustine. Based upon the above facts, the committee determined respondent violated Rules 1.5(f)(3), 1.15(a), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.
There was substantial delay that caused Justice Crain to dissent in favor of a public reprimand
I agree that respondent violated the Rules of Professional Conduct and that discipline is appropriate. However, I find any violations fully mitigated. The investigation of a professional is the exercise of an awesome power with the potential for career altering effects. That power must be exercised judiciously, efficiently and timely.
The ODC began investigating this matter in 2013, having received information suggesting that respondent was operating with an improper fee structure, a serious matter. Respondent answered the ODC’s inquiry and in November 2013 provided them with a sworn statement. In December 2013, he revised his fee agreement and notified his clients.
Yet, an audit was not performed by the ODC until February 2017. At that time the ODC believed respondent could not account for $40,896.13, representing unearned fees and unused costs that were not in his trust account. They were wrong, and respondent provided documentation for all but $3,524.50. After responding to the four-year delayed audit, respondent heard nothing from the ODC until he was formally charged with these violations in March 2021.
Respondent does not admit that the $3,524.50 are not earned fees, but after many years, and unlike the remaining $37,371.63 he was accused of not earning, he cannot produce documentation proving that fact. I find the remaining amount that cannot be accounted for fully mitigated by the inexcusable investigation delay of roughly a decade.
A delayed investigation can be abusive. I believe the nearly ten years that this process has burdened this attorney is itself a form of punishment. Attorneys are bound by ethical rules which must be honored and complied with every day and in every detail of their professional lives. Those rules and the oath which enables them are the foundation of our profession and the public’s confidence in it. The firm, but fair, enforcement of those rules is a critical responsibility of all lawyers. Thus, the reporting obligations for lawyers who observe or are aware of potential violations. But when the discipline enforcement power is abused, the entire ethical mosaic begins to erode. We must be vigilant in protecting against that.
Chief Justice Weimer would impose a period of actual suspension. (Mike Frisch)